Doesn't incorporation doctrine rely to some extent on the provisions of the Bill of Rights being implicit in our nation's concept of ordered liberty and thus encompassed within 14th amendment due process? Should we look to what other nations consider to be implicit in the concept of ordered liberty in determining what parts of the Bill of Rights should be incorporated against the states? Other free nations seem to get along pretty well without a lot of our criminal procedural protections. Should we rethink incorporation of the crim pro protections of the Bill of Rights? Should we rethink incorporation of the Establishment Clause because lots of other free countries permit closer ties between church and state? My answer is "no," and I share Justice Scalia's distaste for Justice Kennedy's reliance on other nations' views.
I'd also have more respect for Justice Kennedy's internationalism if the plurality in Casey had admitted that lots of other nations (almost all of Europe, I think) have more restrictive abortion laws than our Court would find permissible under its concept of due process. And does anybody else think the tone of Justice Kennedy's opinion in Lawrence is very unusual? Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Tom Grey [mailto:[EMAIL PROTECTED] Sent: Thursday, June 26, 2003 3:04 PM To: [EMAIL PROTECTED] Subject: Red-blooded guys At the Battle of Waterloo, the French surrendered. In the Franco-Prussian war, the French surrendered. In World War II, well, the French surrendered. Don't be a big chicken. Eat one. - Hardee's Commercial Much less do [constitutional entitlements] spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. ... The Court's discussion of these foreign views... is therefore meaningless dicta. Dangerous dicta, however, since "this Court ? should not impose foreign moods, fads, or fashions on Americans." -Scalia, J., dissenting, in Lawrence v. Texas OK, Eugene would probably have a legitimate gripe if I just left it at that. As Scalia notes, the amount of protection liberties get is supposed to turn on two factors -- how rooted they are in our history and tradition, and how implicit they are in the concept of ordered liberty. One way to conduct the latter inquiry would be to restrict oneself to armchair political philosophy, but mightn't it be better to also look around and see what other free countries do, as a check on pure speculation? I do realize that Scalia treats both "rooted in tradition" and "implicit in ordered liberty" as elements rather than factors, that is, binary rather than continuous variables, and thinks both should be present before an unenumerated "liberty" triggers heightened scrutiny. And Glucksberg supports that way of talking about it. But there is the other tradition in the caselaw, Harlan's view (Poe) that liberty is a "rational continuum." Casey fell in that tradition with its "undue burden" test, and so it seems does Kennedy's majority opinion here; his blurring of the level of scrutiny and refusal to give it one of the standard labels was surely deliberate. Tom Grey Stanford Law School [EMAIL PROTECTED]
